Hyder v. Hyder, 2006 Ohio 5285 (Ohio App. 10/10/2006), C. A. No. 06CA0014.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtSlaby
Citation2006 Ohio 5285
Docket NumberC. A. No. 06CA0014.
Decision Date10 October 2006
PartiesGlenda R. Hyder, Appellant, v. Tom E. Hyder, Appellee.

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2006 Ohio 5285
Glenda R. Hyder, Appellant,
v.
Tom E. Hyder, Appellee.
C. A. No. 06CA0014.
Court of Appeals of Ohio, Ninth District, Wayne County.
Dated: October 10, 2006.

Appeal from judgment entered in the Court of Common Pleas, County of Wayne, Ohio, Case No. 04-DR-0454,

Lon R. Vinion, Attorney at Law, for Appellant.

Craig R. Reynolds, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

SLABY, Presiding Judge.


{¶1} Plaintiff/Appellant Glenda R. Hyder ("Ms. Hyder"), appeals from the trial court's judgment entry adopting Magistrate Bauder's Report and Proposed Decision ("Magistrate's Report"). We reverse in part and affirm in part.

{¶2} On August 2, 2005 and August 10, 2005, this matter was heard before Magistrate Bauder on Ms. Hyder's complaint for divorce and Tom E. Hyder's ("Mr. Hyder") counterclaim for divorce. On September 22, 2005, the magistrate issued the Magistrate's Report based on the evidence presented at hearing and on stipulations of the parties entered into the record on August 19, 2005. The trial court issued its judgment entry adopting the Magistrate's Report

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on September 22, 2005. Ms. Hyder filed objections to the Magistrate's Report on October 5, 2005, and a memorandum in support of her objections on January 6, 2006. Mr. Hyder filed his opposition to Ms. Hyder's objections on January 26, 2006. Ms. Hyder replied to Mr. Hyder's opposition on January 31, 2006. The trial court overruled Ms. Hyder's objections and issued its final judgment entry on February 3, 2006. Ms. Hyder has timely appealed the trial court's finding and raises seven assignments of error for review.

ASSIGNMENT OF ERROR NO. 1

"The trial court erred in determining certain Uniform Transfer to Minors Act accounts were marital property and in dividing said accounts by and between the parties in contravention of Ohio law."

{¶3} Ms. Hyder asserts that the trial court erred by finding that the following accounts established in the children's names with Ms. Hyder as custodian, pursuant to the Uniform Transfers to Minor Act, were marital assets: (1) Wells Fargo account 1342 ($2,076); (2) Wells Fargo account 1306 ($2,020); (3) Janus Fund account 8719 ($7,948); (4) Janus Fund account 8720 ($4,020); (5) T. Rowe Price account 1970 ($3,783) ; (6) T. Rowe Price account 6680 ($1,051); (7) Wayne Savings account 0018 ($5,461); and (8) Wayne Savings account 0005 ($5,461); and H&R Block account 0147 ($17,400).

{¶4} The distribution of assets in a divorce proceeding is governed by R.C. 3105.171. Bucalo v. Bucalo, 9th Dist. No. 05CA0011-M, 2005-Ohio-6319, at ¶11. Prior to distributing any assets, the trial court is required, by statute, to

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determine whether property is marital or separate property. Id. See R.C. 3105.171(B).

{¶5} This Court has held that the "characterization of property as either marital or separate is a factual inquiry, and we review such characterization under a manifest weight of the evidence standard." (Citation omitted). Morris v. Morris, 9th Dist. No. 22778, 2006-Ohio-1560, at ¶23. Therefore, we must affirm the trial court's characterization if it is supported by competent, credible evidence. Bucalo, at ¶12. This standard of review "is highly deferential and even `some' evidence is sufficient to sustain the judgment and prevent a reversal." Barkley v. Barkley (1997), 119 Ohio App.3d 155, 159, 694 N.E.2d 989.

{¶6} It should first be noted that only eight of the above-referenced accounts are at issue here. The trial court found that the H&R Block account 0147 in the amount of $17,400 was non-marital property and, as such, it was not awarded or credited to either party. As to the remaining eight accounts listed above (the "UTMA Accounts"), we find that there was no competent credible evidence to support the trial court's characterization of the UTMA Accounts as marital property, subject to division.

{¶7} Ohio's Uniform Transfers to Minors Act ("UTMA"), R.C. 1339.33(A), states in pertinent part:

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"A gift or transfer made in a manner prescribed in sections 1339.31 to 1339.39 of the Revised Code, is irrevocable and conveys to the minor indefeasibly vested legal title to the security [or] money[.]" (emphasis added).

{¶8} "Under the Uniform Transfers to Minors Act a transfer of [money] to a minor child by registering the security in the minor child's name will irrevocably convey to the minor an indefeasibly vested legal title to the conveyed property." LCP Holding Co. v. Taylor, 158 Ohio App.3d 546, 2004-Ohio-5324, at FN3.

{¶9} It is undisputed that the UTMA Accounts were funded with marital assets and that they were proper UTMA accounts, i.e., the accounts were in the name of the children with Ms. Hyder named as custodian. Each of the Account statements so indicate and Mr. Hyder presented no evidence that the Accounts were not established as UTMA accounts pursuant to the requirements of R.C. 1339.31, et seq. As such the trial court could not legally characterize the Accounts as marital property and credit them to Ms. Hyder because a Common Pleas Court does not have authority "to make an order concerning the custodian of funds which are solely the property of the minor children of the marriage, and in which the parents, who are the only parties to the litigation, have absolutely no property interest." Ramus v. Ramus (Aug. 19, 1976), 8th Dist. No. 34965, at 3.

{¶10} The Court notes that Mr. Hyder asserts that he was unaware of the establishment of the Accounts. However, Mr. Hyder acknowledges that it was the intent of the parties to put money aside for the children's education. He was

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simply unaware of the type of accounts being used to accomplish that purpose. While Mr. Hyder implies that Ms. Hyder's use of the UTMA statute to accomplish this purpose was financial misconduct pursuant to R.C. 3105.171(E)(3), there was no evidence of such conduct before the trial court and/or other evidence that would allow the trial court to ignore the clear and unambiguous language of R.C. 1339.33 and the case law supporting it.

{¶11} We find that the trial court's characterization of the UTMA Accounts as marital property and the distribution of these accounts to the parties to be against the manifest weight of the evidence and contrary to Ohio law. Accordingly, Ms. Hyder's first assignment of error is sustained. We reverse and remand back to the trial court for proceedings consistent with this opinion.

ASSIGNMENT OF ERROR NO. 2

"The trial court erred in determining the First Knox checking account #0906 had a value of $47,325 and the Fair Finance CD #78176 had a fair market value of $20,000 and in dividing those as marital property."

{¶12} Ms. Hyder asserts that the court erred (1) by characterizing the assets of the tax business operated by Ms. Hyder and her father as marital property; and (2) in determining the value of those assets as of June 2005. The assets were determined to be the First Knox checking account #0906 in the amount of $47,325 and the Fair Finance CD #78176 in the amount of $20,000.

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{¶13} As pertinent to our review of the trial court's characterization of property as marital property, the manifest weight of the evidence standard has been discussed in the first assignment of error

{¶14} We review a trial court's determination of valuation dates for an abuse of discretion. White v. White (Feb. 18, 1998), 9th Dist. No. 18275, at 1. An abuse of discretion is more than an error of law or judgment, but rather, it is a finding that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Under this standard of review, an appellate court may not merely substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 694 N.E.2d 748.

{¶15} It is undisputed that the First Knox checking account and the Fair Finance CD are assets of Ms. Hyder's tax business. Ms. Hyder's father testified that the tax business belongs to Ms. Hyder. R.C. 3105.171(A)(3)(a)(i) defines marital property as "[a]ll real and personal property that currently is owned by either or both of the spouses[.]" The trial court's characterization of the assets of the tax business as marital property and subject to division pursuant to R.C. 3150.171(B) is supported by competent credible evidence.

{¶16} The trial court credited Ms. Hyder with $67,324 representing the assets (checking account and CD) of the tax business. Ms. Hyder disputes this figure. She acknowledges that on August 19, 2005, the parties stipulated that the

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value of the Fort Knox account had been $67,324 as of June of 2005. However, Ms. Hyder asserts that subsequent to that date, she spent $11,000 of this money on business expenses and invested $20,000 in a CD at Fair Finance to cover 2007 start up expenses of the tax business. This left a balance in the checking account of $36,600 as of July, 2005. Ms. Hyder asserts that if indeed the Fort Knox account was a marital asset subject to division, she should only be credited with the current balance of $36,600 less business expenses of $8,000 to $9,000 she will incur prior to the end of the year.

{¶17} R.C. 3105.171 sets forth how a trial court should determine the dates of the marriage for property distribution purposes and states that "during the marriage" means whichever of the following is applicable:

"(a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation;

"(b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in...

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